IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 99-60123 _____________________

ALVIN K. HUGHES,

Plaintiff-Appellant,

v.

GRAND CASINOS INC.; JIM PETERSON;

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Mississippi (1:97-CV-500-GR) _________________________________________________________________

October 22, 1999

Before KING, Chief Judge, JOLLY and WIENER, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Alvin K. Hughes appeals from the

district court’s grant of summary judgment in favor of

Defendants-Appellees Grand Casino, Inc. and Jim Peterson. We

AFFIRM.

I. BACKGROUND

In the Spring of 1997 Defendant-Appellee Grand Casinos, Inc.

(the “Casino”) restructured its Table Games Department.

Defendant-Appellee Jim Peterson (“Peterson”) was the vice-

* Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIRCUIT RULE 47.5.4. president of the department during the restructuring. The

restructuring resulted in the demotion of forty-four employees

and the termination of twelve others. Plaintiff-Appellant Alvin

K. Hughes (“Hughes”) was one of two black male employees

terminated in the restructuring. Additionally, six white males,

two Hispanic males, and two white females were terminated.1

Hughes’s effective termination date was April 7, 1997. On

or about the same day, the Casino presented Hughes with a written

separation agreement (the “Agreement”). The Agreement released

the Casino from any and all claims arising out of Hughes’s

employment and his subsequent termination.2 In exchange for such

1 There appears to be some confusion regarding the number of terminated white male employees. Hughes’s brief and the affidavit of Defendant-Appellee Peterson both state that twelve employees, including Hughes, were terminated: six white males, two Hispanic males, two black males, and two white females. In Hughes’s Response to Defendants’ Motion for Summary Judgment, however, Hughes attached an internal memorandum from the Casino’s Human Resources Department discussing the restructuring. That memo indicated that thirteen employees were terminated: seven white males, two Hispanic males, two black males, and two white females. In any event, the precise number and race of the terminated employees does not affect our holding. 2 Specifically, the Agreement stated that Hughes

hereby releases and discharges Grand [the Casino] and its affiliates, and all of their directors, officers, and employees, agents, successors and assigns from any and all claims (except for claims under this Agreement) arising out of Hughes’s employment by Grand and/or the termination of such employment, including but not limited to claims arising under the United States Constitution, Title VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act of 1990, 47 U.S.C., [sic] 225, 661; the Civil Rights Act of 1991; the

2 release Hughes was to receive five weeks of salary as severance

pay. The Agreement gave Hughes fourteen days to consider the

offer and advised him to consult with an attorney prior to

acceptance. Hughes signed the Agreement sometime after he was

presented with it and received a check from the Casino.

On September 12, 1997, Hughes filed this action in federal

district court against the Casino and Peterson. Hughes’s

complaint alleged that his termination violated Title VII of the

Civil Rights Act of 1964. The Casino and Peterson subsequently

filed a motion for summary judgment, arguing that the Agreement

Hughes signed prevented him from maintaining this action. The

district court agreed, finding that Hughes had knowingly released

the Casino by signing the Agreement and, if not, he ratified it

by retaining his severance pay.

II. DISCUSSION

We review a grant of summary judgment de novo. See Celotex

Equal Pay Act: [sic] the Rehabilitation in Employment Act of 1973; Section 1981 of the Civil Rights Act of 1966; the Age Discrimination in Employment Act, and any other federal, state and local [sic] statute or regulation regarding employment or termination of employment, as well as all common law claims, arising out of any act or failure to act.

3 Corp. v. Catrett,

(1986); Blakeney v. Lomas

Information Systems, Inc.,

(5th Cir. 1995).

Summary judgment is proper when, viewing the evidence in the

light most favorable to the nonmovant, there is no genuine issue

as to any material fact and the moving party is entitled to

judgment as a matter of law. Amburgey v. Corhart Refractories

Corp., Inc.,

(5th Cir. 1991); Fed. R. Civ. P.

56(c).

An employee may enter into a binding agreement to release an

employer from all future claims so long as the employee enters

into the release knowingly and voluntarily. See Williams v.

Phillips Petroleum Co.,

(5th Cir. 1994); EEOC v.

Cosmair, Inc.,

(5th Cir. 1987). A release will be

found to be valid unless the totality of the circumstances

indicates that the employee did not enter into the release

knowingly and voluntarily. See O’Hare v. Global Natural

Resources,

, 1017 (5th Cir. 1990). Hughes argues

that he did not release the Casino because he did not knowingly

and voluntarily enter into the Agreement. Hughes points to our

decision in O’Hare for the proposition that a court should

consider six factors when determining whether a release was

entered into knowingly and voluntarily. These factors are:

(1) the plaintiff’s education and business experience, (2) the amount of time the plaintiff had possession of or access to the agreement before signing it, (3) the role of plaintiff in deciding the terms of the agreement, (4) the clarity of the agreement, (5) whether the plaintiff was represented by or consulted with an attorney, and (6)

4 whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law.

Id. (citations omitted). This list is not exclusive, and a court

need not address each of these six factors when determining

whether a release was entered into knowingly and voluntarily.

Rather, these are simply six “relevant” factors to consider under

the totality of the circumstances test. Id.

Hughes states that he was unsuccessful in attempting to

consult with an attorney, that he did not have a hand in

preparing the Agreement, and that he “felt pressured” to sign the

Agreement because he was told he would be terminated whether he

signed it or not. Hughes maintains that, under the totality of

the circumstances, these facts indicate that he could not have

entered into the Agreement knowingly and voluntarily. We

disagree.

Hughes’s failure to consult an attorney prior to signing the

Agreement does not compel the conclusion that he did not enter

into it knowingly and voluntarily. Consultation with an attorney

is a relevant, but not dispositive, factor in determining whether

a release was entered into knowingly. See O’Hare at 1017. It is

not the Casino’s fault that Hughes did not consult an attorney.

See

.

Moreover, Hughes’s arguments that he “felt pressured” into

signing the Agreement and did not have a hand in drafting the

Agreement are insufficient, in the light of other statements, to

5 show that he did not knowingly and voluntarily enter into the

Agreement. In his deposition testimony Hughes admitted that he

understood that signing the Agreement and accepting the severance

pay meant he was releasing the Casino from any claims. Hughes’s

statement that “[i]t was my understanding that irregardless of

whether or not I signed the agreement that I was still terminated

from the Grand” does not indicate that he was pressured into

signing the Agreement. While Hughes was to be terminated

regardless of whether he signed the Agreement, he could have

chosen not to sign it, foregone severance pay, and taken legal

action against the Casino. He did not. Instead he signed the

Agreement and accepted payment. The totality of the

circumstances indicate that Hughes knowingly and voluntarily

entered into the Agreement, thereby releasing the Casino from all

claims arising out of his employment and termination. Therefore,

there was no issue of material fact, and the district court

properly granted summary judgment in favor of the Casino and

Peterson.

Because we find that Hughes knowingly and voluntarily

released the Casino from any claims, we need not reach the

district court’s alternative grounds for granting summary

judgment.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment in favor of Defendants-Appellees Grand

6 Casino, Inc., and Jim Peterson.

7